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By: Erin Lamb
At its Petersburg, New York plant, Tonoga, Inc. made products and materials coated with polytetrafluoroethylene, better known by its trade name, Teflon. Before 2013, when making Teflon, Tonoga used perfluorooctanoic acid, perfluorooctane sulfonate, or a combination of both. These are man-made chemicals in a class of per- and polyfluoroalkyl substances, generally known as PFAS.
In 2016 Petersburg detected excessive levels of PFAS after testing its municipal water supply. Tonoga reached agreement with the New York Department of Environmental Conservation to help remediate the excess. After that, private parties began to sue Tonoga alleging they had sustained bodily injury and property damage from Tonoga’s negligent release of PFAS.
In a declaratory judgment action against two separate carriers a New York trial court agreed that two different pollution exclusions barred Tonoga’s claim that the carriers had to defend the private lawsuits. The New York Appellate Division affirmed under both exclusions:
While the New York decision is believed to be the first reported state court decision applying pollution exclusions to PFAS claims, we expect to see increasing numbers of cases throughout all jurisdictions involving PFAS claims. PFAS chemicals are common and bioaccumulative, meaning they can build up and persist in the environment. State and federal governments are ramping up efforts to regulate PFAS chemicals and bringing litigation against facilities they alleged contaminated the environment and in particular, groundwater. Personal injury claims are not far behind.
Tonoga Inc., d/b/a Taconic, v. New Hampshire Insurance Co. and Granite State Insurance Co., case number 532546, in the New York State Court of Appeals
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